One Case, Two Trials, Many Changes

From Judge To Jury, Kelly Retrial Marked By Differences

June 11, 1997|By LYNNE TUOHY; Courant Staff Writer

STAMFORD — Retrials typically offer few surprises, but the Alex Kelly rape case has not been typical.

Kelly's second trial began less than six months after the first jury deadlocked 4-2 for conviction, prompting a mistrial last November. Both sides returned to the courtroom in May prepared to put on a new, improved case in their respective zeal to win, and differences in everything from testimony and evidence to courtroom decor and decorum have been marked.

Among those changes:

* The judge. Superior Court Judge Kevin Tierney replaced Martin L. Nigro as trial judge. (Nigro disqualified himself after making disparaging remarks about the defense and Kelly's girlfriend to the jurors after the first trial.) Tierney has tight control of the courtroom and there has been almost no sniping between the lawyers, in contrast to the first trial. Tierney also has given the defense much wider latitude to argue motions.

* The charges. At the outset of the defense case May 29, Tierney acquitted Kelly of the kidnapping charge, saying there was insufficient evidence to prove a forcible abduction. This reduced the maximum prison time Kelly faces by more than half, from 45 years to 20 if he is convicted on the remaining charge of first-degree sexual assault.

* The law. On May 14, the day before this trial began, the state Supreme Court established a new and more liberal standard for the admission of scientific evidence.

* The evidence. The Supreme Court's ruling, in conjunction with new testing done by defense experts, prompted Tierney to reverse his own pretrial decision and allow jurors to hear evidence that Kelly's accuser apparently used marijuana shortly before the sexual encounter on Feb. 10, 1986. Another defense expert testified marijuana use might have relaxed her inhibitions and distorted her memory of what happened.

At this trial the prosecution was able to put into evidence Kelly's passport, which emphasizes his flight from justice in 1987 and his fugitive existence traveling through more than a dozen foreign countries before his surrender in January 1995.

Prosecutors also placed in evidence their own demonstration video depicting the interior of a Jeep Wagoneer similar to the one in which the sexual intercourse occurred. On the tape, a male and female officer similar in size to Kelly and his accuser illustrate the relative ease with which one can move between the front bucket seats and into the rear of the vehicle.

* The testimony. At the first trial Kelly's accuser testified that Kelly's left hand never left her throat as he reached behind the passenger seat and somehow folded down the back seat of the Jeep Wagoneer. This raised doubts in the minds of some jurors from the first trial, they later said, because defense demonstrations showed the seat could not be manipulated with one hand. At this trial, the woman revised her testimony, saying Kelly used both hands to fold the back seat. This is consistent with what she told police the day after the alleged assault.

On cross-examination, she denied smoking marijuana the night in question, putting her credibility further at issue. Kelly, who did not testify at either trial, contends the sex was consensual. Puccio on cross-examination highlighted at least 18 areas in which his accuser had changed her testimony.

In an account that was new to the second trial, Tom Kelly, a friend of Kelly's (no relation), testified that Kelly the next morning denied driving the girl home from a party where they had been. Tom Kelly testified that Alex said a station wagon full of her friends came by and picked her up instead. Asked why he didn't reveal this in the first trial, Tom Kelly replied, ``I wasn't asked.''

* Dueling fathers. The young woman's father testified for the first time that Alex Kelly's father, Joseph Kelly, called him back the next morning to see how the girl was doing and to ask her father what action he intended to take on the rape allegation. Joseph Kelly testified he did not make any phone calls to the girl's home the next morning. Joseph Kelly also said he was taken aback by how calm and unemotional the girl's father had been when he first called him at 1:30 a.m. Feb. 11, to say Alex Kelly had raped his daughter. Joseph Kelly testified he concluded it was a practical joke.

* The jurors. The three men and three women range in age from early 20s to late 60s. Five of the six have children. They and their two alternates seem to be a much more cohesive group than the first jury. They frequently gather at a picnic table behind the courthouse during lunch and often laugh audibly while locked in the jury room during legal arguments.